Gray v. Cook

24 How. Pr. 432 | The Superior Court of New York City | 1863

Bosworth, Ch.' Justice.

The decision of the 12th of December, 1859, is a judgment. It is the final detemination of the rights of the parties in this action. (Code, §245.) No questions, as between them, are reserved for further consideration or left open. The plaintiff insists it is an order, because it requires the defendant to pay the moneys into court to await the further order of the court, and to be distributed according to law. The decision made allows to the defendant his commissions on the moneys received, and he has no right, in reference to the moneys to be paid, nor any duty to perform, except to pay the amount for which judgment is ordered. There is nothing in the allegation or proofs before me suggesting any matter affecting these moneys, which can become a subject of litigation between these parties. The judgment itself, neither in terms nor by the import of its provisions, suggests the existence of any matter of further litigation. I therefore regard it a judgment within the meaning of the Code.

It directs the payment of money and only that, and section 285 prescribes the mode of enforcing it. Although a judgment may require the performance of acts specified in it, yet if it also requires the payment of money, it may be enforced in that respect by execution; § 285 so declares. But this judgment requires nothing besides the payment of money; and if an execution can issue to collect it, that is the only proceeding that can be resorted to, in the first instance, to compel payment.

Proceedings cannot be had under 2 R. S., (5th ed.,) 849, §1, sub. 3, because .that, in terms, excludes all cases where by law execution can be awarded for the collection of the sum ordered-to be paid. It excludes them-, because this remedy “ for the non-payment of any sum of money ordered by such court ” is authorized only “ in cases where by law execution cannot be awarded for the collection'’ of such sum.”

No authority for this proceeding , is found in section 4, (id., 850,) for that. applies only to a “ rule or order of •court.”

Another fatal objection is, that no demand has been made of the defendant to pay the money to the plaintiff or into court. Under of S R. S., 5th ed., and §285 of the Code, there must have been a refusal to comply with the order, to justify a conviction as for a contempt. (Lorton agt. Seaman, 9 Paige R., 609.)

The judgment was entered on the 12th December, 1859, and a copy of it was served on the 26th of June, 1860, with a notice that it was a certified copy of a decree entered on the 24th of December, 1859. 'No other notice nor any demand accompanied the service, and no demand of payment has since been made.

The decree having been served, and not having been performed, there has been a neglect to obey it; but it cannot • be said that there has been a ref usal to obey it, when performance of its requirements has not been requested.

The necessary conclusion from these views is, that the defendant is not guilty of the misconduct alleged against him.

I think the plaintiff has proceeded in good faith, but under erroneous views of her rights.

Nothing was said on the question of costs, as to which the parties may be heard on the settlement of the order to be entered.